Ex Parte Scott

190 S.W.3d 672, 2006 Tex. Crim. App. LEXIS 767, 2006 WL 931624

Opinions

ORDER

PER CURIAM.

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to TexCode CRiM. Pkoc. art. 11.07. Applicant was convicted of attempted capital murder and burglary of a habitation, and punishment was assessed at confinement for twenty-five years and ten years, respectively. These convictions were affirmed.¹

Applicant contends, inter alia, that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not notify him that the convictions had been affirmed or what he needed to do to file such a petition. An affidavit² filed by appellate counsel states that neither he nor his law firm have the written file pertaining to Applicant’s case, but that it was his firm’s usual practice to advise the client of the appellate decision and of his right to file a petition for discretionary review. The trial court recommended that Applicant be granted an opportunity to file an out-of-time petition for discretionary review.

The trial judge stated:

Here, the Court cannot say with certainty that [the attorney’s] action or inaction caused the Applicant to be denied his right to file a PDR, but the practical effect has been the same; the Applicant has been denied this right. Moreover, the Court finds that the record has yielded no evidence that the Applicant caused this denial. Therefore, the Court concludes that the Applicant should be granted an out-of-time PDR.

We disagree with the trial court’s recommendation. It is the Applicant’s burden to prove, by a preponderance of the evidence, that his attorney was constitutionally deficient before he might be entitled to relief on a writ of habeas corpus.³ The record does not support the trial court’s conclusion that Applicant has prov-

en, by a preponderance of the evidence, that his appellate attorney provided constitutionally ineffective assistance of counsel on appeal which prevented Applicant from filing a petition for discretionary review.

Habeas corpus relief is denied.

1 . Scott v. State, 861 S.W.2d 440 (Tex.App.-Austin 1993, no pet.).

2 . Counsel states in his affidavit: "I know that one of Mr. Scott’s allegations is that I 'abandoned' the appeal by failing to file a Petition for Discretionary Review (PDR). First of all, let there be no misunderstanding, my firm ... did represent Mr. Scott on appeal, and did file a brief in his case. We raised all the issues that we raised at trial, and then some, e.g., the improper admission of evidence, the lack of evidence, double jeopardy violations, objections to the jury charge, refusing requested defense instructions to the charge, etc. Unfortunately, his convictions were still affirmed by the Third Court of Appeals. See Scott v. State, 861 S.W.2d 440 (Tex.App.-Austin, 1993, no. pet.). Second, I have no independent recollection of the circumstances involving the filing of a Petition for Discretionary Review on Mr. Scott's behalf. If the opinion on direct appeal affirmed the defendant's conviction, my firm’s usual practice was to advise the client that he or she had the right to file a PDR with the Court of Criminal Appeals within a certain time. I had spoken with ... the attorneys who worked with me on this case, and neither has documentation of that being done in this case. Therefore, all I can say is that it was our usual practice to advise the client of the appellate decision, and of his right to file a PDR and we have no reason to believe that was not done in this case.”

3 . Ex parte Chandler, 182 S.W.3d 350 (Tex.Crim.App.2005) (“To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington, an Applicant must show that his counsel’s performance was deficient and that there is a ‘reasonable probability’ — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel's deficient performance”) (footnote omitted); see, e.g., Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002) (Applicant "must prove the constitutional violation and his entitlement to habeas relief by a preponderance of the evidence”).